F.I.F.A. – Camera di Risoluzione delle Controversie (2015-2016) – controversie di lavoro – ———- F.I.F.A. – Dispute Resolution Chamber (2015-2016) – labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 December 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Mario Gallavotti (Italy), member on the claim presented by the player, Player A, country B, as Claimant against the club, Club C (Club D), country E as Respondent regarding an employment-related dispute arisen between the parties I.

F.I.F.A. - Camera di Risoluzione delle Controversie (2015-2016) - controversie di lavoro – ---------- F.I.F.A. - Dispute Resolution Chamber (2015-2016) - labour disputes – official version by www.fifa.com – Decision of the Dispute Resolution Chamber passed in Zurich, Switzerland, on 17 December 2015, in the following composition: Thomas Grimm (Switzerland), Deputy Chairman Joaquim Evangelista (Portugal), member Mario Gallavotti (Italy), member on the claim presented by the player, Player A, country B, as Claimant against the club, Club C (Club D), country E as Respondent regarding an employment-related dispute arisen between the parties I. Facts of the case 1. On 16 January 2013, the player from country B, Player A (hereinafter: the Claimant or player), and the club from country E, Club C (Club D) (hereinafter: the Respondent or club), signed an employment contract and its annex, valid as from 16 January 2013 until the “end season 2013 of Premier League of country E”. The aforementioned contract was signed on paper on which the header mentions “Club C” and on which the footer mentioned “Club D”. 2. Article 1 of the contract stipulates “‘Club’ agreed employ and ‘Footballer’ agreed to work in position footballer for Club D from date January 16th 2013 to end of season 2013 of Premier League of country E”. 3. The annex to the contract provides that the Claimant shall receive the following amounts and amenities: a. 210,000 per month as salary, payable at the end of each month; b. 500 per day as a training fee; c. 600,000 as “signing fee”, as follows: i. 300,000 on 25 January 2013; ii. 300,000 on 15 February 2013; d. “provide accommodation to ‘footballer’ (under budget 4,000 excluded expenses and fee)”; e. “provide 1 seat of air ticket for ‘footballer’ when season competition finished”. 4. On 5 June 2013, the Claimant formally put the Respondent in default of the amount of 2,500,000, or EUR 60,000. 5. On 19 December 2013, the Claimant notified the Football Association of country E (hereinafter: Football Association of country E) of the termination of the contract by the Respondent “Club D (now Club C)” on an unspecified date without giving a reason, stating that he is owed 2,490,000 plus expenses and accommodation and asked for the Football Association of country E’s help in resolving the matter. 6. On 11 March 2014, the Claimant lodged a claim in front of FIFA against “Club C (Club D)” asking that he be paid a total of 2,512,909 (or EUR 57,607) plus EUR 15,000 plus 5% interest p.a. from 5 June 2013 (i.e. the date of the default notice, cf. point I.3 above), as follows: a. 10,000 (or EUR 225) as outstanding remuneration from 16 January 2013 until 28 February 2013 (cf. point I.9 below); b. 1,700,322 (or EUR 38,204) as pertaining to monthly salaries from 1 March to 3 November 2013; c. 125,500 (or EUR 2,820) as training fees from 1 March to 3 November 2013 (cf. point I.3.b above); d. 600,000 (or EUR 13,484) as the signing fee; e. 32,387 (or EUR 728) as housing allowance (cf. point I.3.d above); f. 44,700 (or EUR 1,000) as flight ticket; g. Moral damages in the amount of EUR 10,000 and legal expenses in the amount of EUR 5,000. 7. The Claimant asserts that in 2011 the Respondent competed under the nomination “Club D”, and changed its nomination to “Club C” in order to compete in the Premier League of country E for 2012. The Claimant signed in January 2013 when the club was called “Club C”. The Claimant explains that at the beginning of March 2013, seemingly as a result of internal problems, the Respondent changed its name back to “Club D” on the eve of the Premier League of country E 2013, and that following the change of nomination the Respondent did not uptake the contracts signed with Club C. 8. The Claimant claims that in the beginning of March 2013 the Respondent stopped executing all the player’s contracts, including that of the Claimant. 9. The Claimant asserts that the Respondent paid him 333,700 between 16 January and 28 February 2013. The sum of 10,000 remains due for this period, and the Claimant claims that he has received no other remuneration since. 10. On 2 July 2014, i.e. after the deadline for a response had expired on 16 April 2014, “Club D” replied to the claim stating that Club D had been granted permission to participate in the Premier League of country E 2013 and that according to a decision of the Football Association of country E, Club C was not allowed to participate in the competition. The Respondent further states that it submitted a “list of football players who would be participating in the 2013 Premier League of country E” and that the Claimant’s name did not appear on said list. 11. The Respondent states that Club C illegally altered the company’s capital and as a result both civil and criminal legal actions were initiated against Club C. In this regard, the Respondent claims that if Club C signed a contract with the Claimant, it had been carried out without the consent of Club D and the person who signed the contract was not authorised to do so. In addition, the Respondent states that Club D had no knowledge of the execution of, nor was it a party to, the contract signed with Club C. Therefore, the contract was not legally binding to Club D. 12. The Respondent further states that if the Claimant wishes to claim compensation for the prejudice suffered as a result of the non-execution of the contract with Club C, under the provisions of law of country E, the Claimant would have to take legal action against the people who had signed it. 13. The Football Association of country E informed FIFA that with regard to the 2012/2013 and 2013/2014 seasons, Club C was originally named Club D. It asserts that the case “among the partners of the club has been still in court”. It adds that the Football Association of country E is awaiting the court’s decision and does not know how long it will last and will keep FIFA informed of any information it receives. 14. The Football Association of country E forwarded a “clarification letter” dated 25 October 2014 from the Premier League of country E which states “we are pleased to inform that Club C or Club D is affiliated to Football Association of country E on January 2011 and February 2012. Also the Player A never has been register in Premier League of country E in any season”. From the documentation submitted it can be noted that the 2011 season started on 12 February 2011 and the Respondent was called Club D, the 2012 season started on 17 March 2012 and the Respondent was called Club C, and that the 2013 season started on 2 March 2013 and the Respondent was called Club D. 15. From the information contained on the Transfer Matching System (TMS), it appears the Claimant signed an employment contract on 18 June 2014 with the club from country G, Club H, valid from 1 July 2014 until the end of the 2015/2016 season, and he was to make a monthly 1,200,000 for the duration of employment. II. Considerations of the Dispute Resolution Chamber 1. First, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 11 March 2014. Consequently, the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2012 edition of the Procedural Rules). 2. Subsequently the DRC referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2015) the Chamber is competent to decide on the present litigation, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country E. 3. In continuation, the DRC analysed which edition of the FIFA Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the DRC referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2015), and considering that the present claim was lodged on 11 March 2014, the 2012 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging the aforementioned facts as well as the arguments and documentation submitted by the parties. The Chamber, however, emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand. 5. In this respect, the DRC acknowledged that the Claimant had signed an employment contract with Club C / Club D on 16 January 2013, in accordance with which it was entitled to a monthly salary of 210,000 as well as a 600,000 signing fee payable on 25 January 2013 and 15 February 2013 in two equal instalments. 6. In continuation, the Chamber acknowledged that the Claimant had lodged a claim in front of FIFA against the Respondent seeking the payment of a total of 2,512,909 corresponding to outstanding remuneration as well as the residual value of the employment contract. More specifically, the Claimant indicated that the Respondent had terminated the employment contract without just cause when the Respondent changed its denomination before the beginning of the national championship in March 2013 and did not continue to execute the employment contract. 7. Subsequently, the members of the Chamber observed that the reply of “Club D” was received after the deadline granted for reply, but still before the closure of the investigation of the matter at hand. In this respect, the Chamber noted that “Club D” claimed that as the denomination of the club had changed from “Club C” to “Club D”, the employment contract signed with the Claimant did not produce any binding effect to the club. 8. In continuation, and before establishing whether the clubs Club C and Club D were one and the same or different entities, the DRC deemed it appropriate to establish whether any valid reason had been given by any of the clubs for the termination of the contract with the Claimant. In this respect, the Chamber was eager to emphasise that only a breach or misconduct which is of a certain severity justifies the termination of a contract without prior warning. In other words, only when there are objective criteria which do not reasonably permit to expect a continuation of the employment relationship between the parties, a contract may be terminated prematurely. Hence, if there are more lenient measures which can be taken in order for an employer to assure the employee’s fulfilment of his contractual duties, such measures must be taken before terminating an employment contract. A premature termination of an employment contract can always only be an ultima ratio. 9. In view of the above, the Chamber first noted that the termination of the contract by the club(s) had not at all been disputed. Furthermore, the DRC noted that argument or documentation had been provided by either “Club C” or “Club D” with regard to any breach of contract on the part of the Claimant, which would justify the unilateral termination of his contract. Consequently, the Chamber concluded that contract concluded with the Claimant was terminated without just cause by the club on 1 March 2013, i.e. date on which the contract had clearly stopped being executed. 10. Having established the clear unjustified termination on the part of the club and before determining the consequences thereof, the members of the Chamber then sought to establish whether “Club C” and “Club D” were the same club or two different entities as claimed by “Club D” in its reply to the claim. In this respect, the Chamber recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof in relation to any payments or that any non-payment of amounts due was somehow justified. Bearing in mind that the Respondent asserted that “Club C” and “Club D” were not the same club, the members of the Chamber acknowledged that evidence on file suggests that the aforementioned denominations relate to the same club. In this regard, the DRC noted that the contract provided by the Claimant was written on a document which named the contractual parties as being “Club C” and “Player A”. The document, however, has the logo and name of “Club C” as its header, and the name “Club D” as well as its address (cf. point I.1 above). 11. In addition, referring to art. 6 par. 3 of Annex 3 of the Regulations, the Chamber took into consideration that according to the information contained in the Transfer Matching System, a document entitled “Termination Contract” contains the signature of both the Claimant and a representative of the Respondent. In addition, the members of the Chamber took note that the header of the document contains the logo and the name of “Club C” and also contains the footer entitled “Club D” with its address. The DRC however noted that the content of the letter includes the Respondent as being named “Club C Club D”. 12. In continuation, the Chamber took due note of the information provided by the Football Association of country E which states that “during the 2012/2013 and 2013/2014 season Club C was originally named Club D” as well as the information contained in the letter dated 25 October 2014 which states “we are pleased to inform that Club C or Club D is affiliated to Football Association of country E on January 2011 and February 2012” (cf. point I.14 above). Finally, the DRC noted that the club that replied to the claim of the Claimant is named “Club D” (cf. point I.10 above), which appears to be a combination between “Club D” and “Club C”. 13. From all of the above, the members of the Chamber concurred that “Club C” and “Club D” must be considered as one and the same club and that the Respondent had not sufficiently substantiated its defence, as it did not present any conclusive evidence which could corroborate that “Club C” and “Club D” were not the same club, nor that the non-payment of salaries and the sign-on bonus was somehow justified. 14. Consequently, the Chamber opined that the Claimant could, in good faith, have reasonably believed that both Club C and Club D are the same club and therefore expect that Club C (Club D) duly complies with the terms of the contract concluded between them. 15. In view of all of the above, and in particular taking into account that the members of the Chamber established that the Respondent, Club C (Club D), had terminated the employment contract with the Claimant without just cause, the Chamber decided that in accordance with the legal principle of pacta sunt servanda, the Respondent must fulfil its contractual obligations towards the Claimant and is to be held liable to pay the Claimant outstanding remuneration of 600,000 pertaining to the sign-on fee as well as 10,000 due for the period between 16 January and 28 February 2013, for a total of 610,000. 16. In continuation and with regard to the Claimant’s request for interest, the Dispute Resolution Chamber decided that the Claimant is entitled to receive interest at a rate of 5% p.a. on the amount of 610,000 as from 5 June 2013 until the date of effective payment. 17. In continuation, having established that the Respondent is to be held liable for the termination of the contract without just cause, the Chamber decided that in accordance with art. 17 par. 1 of the Regulations, the Respondent is liable to pay compensation to the Claimant. The Chamber therefore focused its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of the Chamber first recapitulated that the amount of compensation shall be calculated in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. 18. In application of the relevant provision, the Chamber held that it first had to clarify whether the pertinent employment contract contains a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract. The Chamber established that no such compensation clause was included in the employment contract at the basis of the matter at stake. 19. As a consequence, the members of the Chamber established that the amount of compensation payable by the Respondent to the Claimant had to be assessed in application of the other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that said provision provides for a non-exhaustive enumeration of criteria to be taken into consideration when calculating the amount of compensation payable. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. 20. The members of the Chamber then turned their attention to the remuneration and other benefits due to the Claimant under the existing contract and/or the new contract, which criterion was considered by the Chamber to be primordial. The Chamber was eager to emphasise that the wording of art. 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and the new contract in calculation of the amount of compensation. 21. In accordance with the employment contract signed by the Claimant and the Respondent which was to run until the end of the 2012/13 season – according to TMS, the 2012/13 season in country E ended on 3 November 2013 – the Claimant was to receive remuneration amounting to 1,680,000 between March 2013 and 3 November 2013. In addition, the Claimant was entitled to a total of 32,000 as housing allowance for the same period. Consequently, the Chamber deemed that the amount of 1,712,000 serves as the basis for the final determination of the amount of compensation awarded for breach of contract. 22. The Chamber took due note of the employment situation of the Claimant after the termination of the employment contract with the Respondent. It was noted that the player did not sign an employment contract until 18 June 2014, i.e. after the period of duration of the employment contract linking the Claimant to the Respondent. Therefore, the Claimant’s new employment situation is not to be taken into account in the calculation of the compensation due to the Claimant by the Respondent. 23. Consequently, on account of all of the aforementioned considerations and the specificities of the claim at hand, the Chamber decided that the Respondent had to pay compensation to the Claimant valued on the basis of the entire residual value of the employment contract, i.e. 1,712,000. 24. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay the Claimant interest of 5% p.a. on the amount of compensation as of the date on which the claim was lodged, i.e. 11 March 2014 until the date of effective payment. 25. Equally, with regard to the Claimant’s claim pertaining to flight tickets, on the basis of the information provided by FIFA Travel and referring to the relevant terms of the employment contract, the Chamber decided that the Respondent must pay the Claimant the amount of USD 950 for one flight ticket between country E and country B, plus interest of 5% p.a. as of the date on which the claim was lodged, i.e. 11 March 2014 until the date of effective payment. 26. Furthermore, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s longstanding jurisprudence in this regard. 27. Finally, the DRC concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected. III. Decision of the Dispute Resolution Chamber 1. The claim of the Claimant, Player A, is partially accepted. 2. The Respondent, Club C (Club D), has to pay to the Claimant, within 30 days from the date of notification of this decision, outstanding remuneration in the amount of 610,000 plus 5% interest p.a. as from 5 June 2013 until the date of effective payment. 3. The Respondent has to pay to the Claimant, within 30 days from the date of notification of this decision, compensation for breach of contract in the amount of 1,712,000 plus 5% interest p.a. as from 11 March 2014 until the date of effective payment. 4. The Respondent has to pay to the Claimant, within 30 days from the date of notification of this decision, USD 950 as flight tickets plus 5% interest p.a. from 11 March 2014 until the date of effective payment. 5. In the event that the amounts due to the Claimant in accordance with the aforementioned numbers 2., 3. and 4. are not paid by the Respondent within the stated time limits, the present matter shall be submitted upon request to the FIFA Disciplinary Committee for consideration and a formal decision. 6. Any further claim lodged by the Claimant is rejected. 7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received. ***** Note relating to the motivated decision (legal remedy): According to art. 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Dispute Resolution Chamber: Markus Kattner Acting Secretary General Encl. CAS directives